Expanding Your Appointment

I. Steps for Expansion of the Appointment

In both the Third and Fifth District Courts of Appeal, appointed counsel must move to expand their appointment to seek compensation for all writ petition work, including habeas corpus, mandamus, and certiorari, as well as other work outside of the scope of the appointment, such as motion work and appearances in the trial court, with limited exceptions. Simply stated, counsel will not be paid for work done outside of the direct appeal without obtaining an order for compensation from the courts in these two districts.

Steps:

1. 1. Application to Expand Appointment

To obtain pre-approval, counsel must prepare a formal, written application providing the court with sufficient information to determine if the described work should be authorized. Thus, an expansion request must provide enough information such that counsel presents the court with at least a colorable claim, if not a prima facie case. The relevant factors for each type of writ petition are explained more fully below.

1. 2. Consult and Email the Application to CCAP Staff Buddy for Administrative Review

Counsel should first consult with their CCAP buddy before spending a lot of time on the subject to get the most current views of the court as to expansion requests, payment, and to discuss whether the assigned buddy thinks it is a reasonable course of action. Counsel should then email their CCAP buddy a draft of the expansion request with a proposed proof of service. (See Tip below about service recipients.) The buddy will then confer with CCAP’s administrative claims reviewers to determine whether the request is sufficient or whether it can be bolstered to strengthen counsel’s position in support of expansion. The buddy will then notify counsel when the application is sufficiently detailed or provide suggestions for improvement. Counsel will then prepare and email the final draft to the buddy and send the service copies as required by the Proof of Service. (CCAP does not execute service copies as this step is an administrative function only.)

1. 3. CCAP Responsibility to Truefile Application and Recommendation

CCAP will TrueFile the finalized expansion application along with our administrative recommendation to the court for a ruling. If counsel attempts to file the expansion request directly with the court, the court will reject the filing or hold the request until CCAP conducts its administrative review. Counsel must retain one original “wet” signature hardcopy of the request in their file pursuant to current e-filing rules of court.

4. CCAP’s Limited Authority to Recommend Compensation for Work Performed Without Court Approval

If the court grants the expansion application with a maximum time or expense limit, that limit must be adhered to for compensation purposes unless a further expansion is sought and granted by the court, or further authorization is ordered by the court. No amount of explanation on the claim form can support a CCAP recommendation beyond the court’s ordered time or expense limit.

II. Petitions Requiring Expansion First

A. Habeas Expansion

The application for expansion of appointment to file a habeas petition must make a detailed showing of good cause to believe there are grounds for habeas relief. The court will not approve the application if it is speculative or appears to be a fishing expedition.

1. Preliminary Investigation

Before moving to expand the appointment, investigate and verify the facts. Unless there is some preliminary investigation, such as contacting trial counsel if the basis for the writ is ineffective assistance of counsel, you may not be able to make out a reasonable case for further activity. Counsel is permitted limited time to investigate a habeas issue without obtaining preauthorization (usually 2.5 hours per issue depending on complexity), so when in doubt, counsel should move to expand the appointment or request preauthorization of expenses for further investigation.

2. Nuances Justifying Habeas Expansion

The application to expand appointment should not contain conclusory allegations; it should be accompanied by some evidence supporting the allegations, such as declarations or citations to the record. It should also discuss how the evidence outside the record will establish prejudice in relation to the conviction.

3. Strategic Choice of Which Court to File the Petition

It is important at this point to set forth whether the petition will be filed in the superior court or the Court of Appeal. Since the appellate courts are not designed to handle evidentiary hearings in which there are factual disputes, and since they regard most of the trial process as a county responsibility, this is where the costs and work tend to be shifted. Thus, the Court of Appeal may deny the expansion application without prejudice to filing it in the superior court. (At that point it is then the superior court’s decision whether to appoint you for this work.)

Of course, the courts make exceptions to their usual practice. In limited circumstances, the court will accept a petition in conjunction with the appeal where it is directly related to an appellate issue raised and there is no controversy over the facts. As a result, if there is a special reason a petition should not be sent to the trial court initially, it would be wise to put that reason into the application to expand the appointment. Likewise, include any previous superior court habeas action in this explanation if there was such an action.

4. Make the Case for Counsel, not Appellant, to Draft the Petition

It is important to explain why the appellant is not able to file a pro per habeas petition on the form provided by the Judicial Council. For example, counsel might point out the appellant’s age, disability, lack of access to a law library, limited English proficiency, sex counts of conviction, etc. And if the issue raised in the petition is highly technical with respect to legal procedures and concepts, this should be explained in the expansion request.

5. Essential Elements to Cover in the Application to Expand for Habeas

Provide the following information in your expansion request: (1) a time estimate of how long it will take to prepare the habeas petition; (2) any extraordinary expenses counsel seeks to incur (e.g., investigators, experts, etc.) with a specific estimate from a provider; (3) all travel costs.

6. Submission to CCAP and Filing Steps

Follow all Steps 1-4 above under “Steps for Expansion of the Appointment.”

B. Mandate/Prohibition Expansions

Petitions for writs of mandate and prohibition are used to request immediate review of rulings made by the trial court during the course of criminal proceedings. One of the more common reasons for appointed counsel to file a writ of mandate and move to expand an appointment order for that work is to perfect the right to appeal, and in particular to compel the trial court to issue a certificate of probable cause previously denied by the trial judge.

1. Nuances Justifying Expansion by Counsel Not Appellant

The application should point out that, unlike a petition for writ of habeas corpus for which there is a standardized form, the petition for writ of mandate or prohibition is traditionally prepared by an attorney.

2. Essential Elements to Cover in the Application to Expand for Mandate/Prohibition

Counsel should include a reasonable estimate of how much additional research and preparation time is needed, and whether there are anticipated extraordinary expenses beyond typical expenses encountered copying and mailing the petition to the parties.

3. Special Note for Fifth District Cases

The Fifth District requires that all extraordinary writ petitions, other than habeas, but including writs of mandate, be submitted with a completed coversheet called, Appellate Court Writ Petition Information Sheet.” This information sheet is not required for habeas writs.

4. Submission to CCAP and Filing Steps

Follow all Steps 1-4 above under “Steps for Expansion of the Appointment.”

C. Certiorari Expansion

Only a handful of certiorari petitions are filed in appointed cases each year, so it is an exceptional step.

1. Justifying Expansion

Requests to file a certiorari petition should address whether there is a reasonable chance of certiorari being granted. That means there must be a strong, well-preserved federal issue that has important societal implications. In addition, if the same issue is currently pending before the California Supreme Court, or if there is a split of authority, counsel should describe the current cases.

2. Essential Elements to Cover in the Application to Expand for Filing a Petition for Writ of Certiorari

As with other expansion requests, counsel should provide an estimate of how long it will take to prepare the petition. Counsel should indicate whether some of the research and writing that went into the briefs on appeal will be applicable as a cost-saving measure.

3. Exception to Expansion Requirement for Apprendi Issues

There is currently one exception to the expansion requirement. In light of the U.S. Supreme Court’s decision in Cunningham v. California (2007) 549 U.S. 270, both the Third and Fifth District Courts of Appeal agreed not to require counsel to file the expansion request if a certiorari petition raising an Apprendi/Blakely/Cunningham issue could be prepared in 4.0 hours or less. Neither court has expressly revoked this permission.

Although many Apprendi issues are now decided, it is still possible that some arise given new legislation. However, if at any point before or during the preparation of the petition and related activity counsel believes that 4.0 hours exception provision may not be sufficient time to complete the petition, a motion to expand should be submitted as soon as possible directly to the Court of Appeal. The expansion must include: (1) an explanation for the need for more time, and (2) an indication of how many hours is needed. The 4.0 hours include not only the petition, but also the time for obtaining the In Forma Pauperis declaration from the appellant (required to avoid having to pay a filing fee for which counsel would not be reimbursed).

D. Error Corum Nobis (Vacate Judgment)

A rare type of writ that in effect will vacate the judgment based on some fact or facts that existed that, without any fault or negligence by the defendant, was not presented to the court at or before trial and would have prevented rendition of the judgment.

1. Nuances Justifying Error Corum Nobis Expansion

Similar to habeas petition preparation, counsel must do the preliminary investigation that reveals probable cause that newly discovered facts support grounds for vacating the judgment. The facts must not go to the merits of the issues tried and could not be discovered earlier. Counsel should follow the steps for applying for habeas expansion, listed above.

2. Submission to CCAP and Filing Steps

Follow all Steps 1-4 above under “Steps for Expansion of the Appointment.”